South Korean AIDS Prevention Act Put to Trial for Unconstitutionality

Jasmine Velasquez

East Asia and Human Rights Researcher 

Global Human Rights Defence

On the 10th of November 2022, the South Korean Constitutional Court opened the case against whether provisions of the Acquired Immunodeficiency Disease Prevention Act (AIDS Prevention Act), which criminally penalised transmission-mediated acts of persons infected with Human Immunodeficiency Virus (HIV), were unconstitutional (Lee Y, 2022).

Articles 19 and 25 of this AIDS Prevention Act punished the person infected with a prison sentence of up to three years if they conduct transmission through blood or body fluids (Lee Y, 2022). Discussed at the initial public argument were issues on whether it violates principles of freedom of action of the infected person, and if it violates principles of proportionality and equality as it seemed an excessive punishment compared to other infectious diseases such as tuberculosis.

Experts present at the Court argued against the AIDS Prevention Act, as it also punishes sexual acts of an infected person who cannot transmit AIDS to others because the virus is no longer detected (Lee S, 2022). A lawyer argued that the right to freedom of action, the pursuit of happiness, the right to sexual self-determination, the right to privacy, and the privacy and freedom of an AIDS-infected person were violated, and thus the rule of excessive prohibition was violated (Lee S, 2022). Furthermore, other lawyers claimed that the AIDS Prevention Act discriminates against AIDS compared to other Class 3 infectious diseases, which have the same lethality and transmission potentials, such as tetanus, Japanese encephalitis, and tuberculosis (Lee Y, 2022).

Earlier, on the 9th, the National Human Rights Commission of Korea submitted to the Constitutional Court the opinion that the AIDS Prevention Act was unconstitutional. The Human Rights Committee said that the law violates the principle of proportionality by punishing private acts with prison sentences even though there are alternative and less intrusive means possible. They also claimed that it violates the general right to freedom of action, privacy, and freedom of people living with HIV as guaranteed by the Constitution (Lee Y, 2022).

The AIDS Prevention Act was enacted in 1987, one year before the Seoul Olympics, out of fear that the spread of HIV in Korea could increase due to foreigners participating in the Games (Eun, 2022). Those calling for unconstitutionality point out that the resulting stigma has an adverse effect on HIV prevention. Two hours before the public hearing, a press conference was held in front of the Constitutional Court by the HIV/AIDS Human Rights Activists Network, where 46 organisations urged for the ruling to recognize the Act’s unconstitutionality (Eun, 2022). Representatives at this press conference claimed that this would likely gain international attention and be officially evaluated for violating international human rights law (Eun, 2022). This is because international organisations such as UNAIDS and other health experts have emphasised that punishing HIV-infected people through law is not only a violation of human rights but is also ineffective in preventing HIV and promoting public health (Eun, 2022). Previously, Korea's compulsory HIV testing policy was judged to be a violation of international human rights law by the UN Committee on the Elimination of Racial Discrimination in 2015 and the UN Human Rights Committee in 2018 (Eun, 2022). Activist groups present at the conference claimed that so long as severe punishment and stigma for HIV and AIDS persist, citizens will avoid HIV screening, and the right of people living with HIV to receive safe treatment without discrimination will be violated (Eun, 2022).

Within international human rights law, there are several principles and rights that are of relevance to this case. These are presented by the International Guidelines on HIV/AIDS and Human Rights made by the Office of the United Nations High Commissioner for Human Rights (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). Guideline 4 of this document states that “States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV or targeted against vulnerable groups” (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). This includes how “criminal and/or public health legislation should not include specific offenses against the deliberate and intentional transmission of HIV” (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). In the application of specific human rights, the first is the right to non-discrimination and equality before the law. This right is enshrined in Article 7 of the UN Declaration of Human Rights. The prohibition against discrimination thus requires States to review laws, policies, and practices on arbitrary HIV-related criteria (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). 

Second is the right to privacy. Article 17 of the International Covenant on Civil and Political Rights writes that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks” (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). Privacy is particularly pertinent in the context of HIV, due to the invasive nature of mandatory HIV testing and the stigma and discrimination attached to HIV status (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). The Human Rights Committee has found that the right to privacy under article 17 of the International Covenant on Civil and Political Rights is violated by laws that criminalise private homosexual acts (“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version”). South Korea ratified the ICCPR in 1990 (“Ratification Status by Country”).

Therefore, it can be concluded that the South Korean AIDS Prevention Act violates the above human rights obligations. 

Moving forward, the Constitutional Court plans to judge whether the AIDS Prevention Act is unconstitutional based on the pleadings and testimonies from both sides. The sentencing date is unconfirmed, however, it is estimated that it usually takes about a year to reach a judgment when public pleadings are held in the Constitutional Court (Lee Y, 2022).

Sources and further reading:

Eun H, “헌재, 'HIV 전파매개행위죄' 10일 공개변론... 위헌 주장 근거는?” (비마이너 November 10, 2022) <https://www.beminor.com/news/articleView.html?idxno=24195>; accessed November 11, 2022 

“International Guidelines on HIV/AIDS and Human Rights-2006 Consolidated Version” (OHCHR January 1, 2008) <https://www.ohchr.org/en/publications/reference-publications/international-guidelines-hivaids-and-human-rights-2006>; accessed November 11, 2022 

Lee S and Kim C, “성관계 했다고 징역 3년?…‘왜 에이즈 환자만 차별’ vs ‘공익이 더 커’” (머니투데이 November 10, 2022) <https://news.mt.co.kr/mtview.php?no=2022111016483326074>; accessed November 11, 2022 

Lee Y, “'에이즈 감염자 전파매개행위 처벌' 위헌 여부 싸고 헌재서 공방” (법률신문 November 11, 2022) <https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=183021>; accessed November 11, 2022 

“Ratification Status by Country” (United Nations Human Rights Treaty Body Database) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=141&Lang=EN>; accessed November 8, 2022